COMMENT

Rainer Bauböck, University of Göttingen and European University Institute

Multiple citizenship is both inevitable and legitimate

Let me start with a full disclosure: I am an Austrian mono-national by birth and lived in Italy for eleven years until 2018. I would have been tempted to acquire Italian citizenship by naturalisation, which, as an EU citizen, I could have done after four years. I didn’t do so because I would have lost my Austrian citizenship. While living in Italy I voted regularly in Austrian elections and kept myself fully informed about Austrian politics. I have a house near Vienna, where I spend the summer months and where I intend to settle permanently after retirement. According to Ana Tanasoca’s book, I should not have enjoyed voting rights in Austria while living in Italy. Otherwise, she believes that Italy and Austria applied the right rules, since she defends that migrants’ host states should not make renunciation of a formerly held citizenship a condition for naturalisation (which Italy doesn’t do) while sending states ought to deprive expats of their citizenship of origin once they adopt their host country’s nationality. I disagree with these conclusions and with much else in this book, but I hope that my views are not biased by my personal experience.

In any case, I welcome this book as a bold statement. It goes against the grain of a wide consensus among legal scholars that multiple citizenship has become an inevitable and irreversible phenomenon in our globalised world and among normative political theorists that it can also be justified in most cases on grounds of liberal principles as they apply to citizenship status. Tanasoca’s challenge helps to clarify assumptions that have often been left implicit and forces the mainstream of current citizenship scholars to become more rigorously analytical in defending their views.

Having said this, my general impression about this book is that it tries to be contrarian to the extent that it fails to consider well enough the arguments on the other side. It often also overshoots by criticising not just multiple citizenship but wishing away a much broader set of phenomena emerging from migration in a context of global interdependence. In other words, the book fails to engage with the drivers of the trend towards tolerating multiple nationality and thus does not convince in its normative responses either.

Before addressing the main arguments of each chapter, I want to point out what I see as the basic conceptual flaw. Tanasoca regards citizenship merely as a bundle of rights and asks how these rights should be distributed justly across populations. She generally does not consider, first, that rights have to be generated and protected by institutions, which in the case of national citizenship are those of states. Yet how can one propose an ‘unbundling’ of rights from citizenship (elaborated in chapter 8) without asking which states would be responsible for protecting which rights and what kind of cooperation between states would be necessary in order to achieve an allocation of citizenship-independent rights across borders? Tanasoca’s discussion relies in this respect on a ‘rights-ex-machina’ fallacy that is unfortunately quite common in liberal normative theory.

Secondly, considering citizenship only as a bundle of rights forgets the most important function of citizenship in the international arena. Citizenship is a legal status to which rights are attached and not the other way round. And that legal status serves a specific function in the Westphalian state system: it assigns individuals to states in such a way that states are responsible for them and can exercise jurisdiction over them. The allocation of citizenship is in this regard just as indispensable for the international state system as the allocation of territory. The idea that ‘states might even dispense with the category of “citizenship” altogether when proceeding with the unbundling’ (p. 165) is a fantasy. States cannot do this without ceasing to be states, i.e. territorial polities with a permanent population that mutually recognize each other as sovereign and do not recognize any encompassing global polity exercising sovereignty over them.

This basic misunderstanding of citizenship informs the premise of chapter two on multiple citizenship by birth, which is that ‘the main priority … in adopting birthright was to avoid statelessness’ (p. 21) and that ‘particular states grant citizenship to particular infants not because of any deeply moralized connections established by birth but purely out of efficacy (p. 24, original emphasis). Historically, this is of course nonsense since the rules of ius soli and ius sanguinis are older than the international state system itself and avoidance of statelessness became a concern of international law only in the 20th century. What birthright citizenship rules guarantee instead is that states have permanent populations also in contexts of cross-border mobility, since they establish not only that citizenship is attributed to particular individuals automatically and without their choice but also that it is presumptively a lifelong status that individuals do not lose when they take up residence abroad. The normative question is whether automatic and lifelong citizenship can also be defended on grounds of democratic principles. I have argued elsewhere that it can (Bauböck 2017). While I agree with Tanasoca that in mobile societies birthright citizenship is a bad proxy for current social membership, it is needed to provide democratic states with the kind of stability that they require in a Westphalian international environment and with intergenerational continuity that allows them to take decisions that will shape the conditions of future generations’ lives.

Ius soli and ius sanguinis rules meet this basic requirement equally well. From a liberal perspective they are not alternatives but need to be combined (as most liberal states do in different ways) in order to include second generations born to foreign parents (through ius soli) as well as those born to first generation emigrants abroad (through ius sanguinis). The point is that this leads inevitably to multiple citizenships at birth through the combination of ius soli and ius sanguinis. The same effect is also achieved through gender neutral ius sanguinis alone in case of mixed nationality parents. In spite of her fundamental critique of birthright membership, Tanasoca seems to accept this outcome but suggests that multiple birthright citizens should lose their non-resident citizenships if they do not actively renew them every ten years or if they do not take up residence in the country (p. 35). Such reforms do no stray too far from current practice in some states, but they still destabilize lifelong membership. More worryingly, these reforms could be a first step on the road to enhanced powers of states to deprive citizens of their status and to manipulate thus the composition of the citizenry to which state authorities are accountable.

Chapter 3 on multiple citizenship by naturalisation makes two proposals. The first one assures mono-nationality by supporting automatic loss of the citizenship of a country of origin in case of naturalisation in a host country. The second proposal is a softer alternative that merely requires naturalisation applicants to actively choose to retain their citizenship of origin – with a default loss if they don’t. It is not entirely clear what motivates Tanasoca to adopt this softer stance. She seems to be saying that if dual citizenship cannot be avoided, it should at least be actively chosen. However, in contrast with dual citizenship at birth, dual citizenship through naturalisation can be effectively avoided through either a renunciation requirement or an automatic loss provision. Moreover, the proposed option duty is unworkable because it ignores the motivations of all actors involved, which defeats its presentation as a nudging policy. Why would host states who accept dual citizenship ask applicants whether they would not rather opt out of their previous citizenship? And why would countries of origin that also accept dual citizenship because they have an interest in retaining legal ties to their emigrants cooperate in nudging them to opt out? Finally, as Tanasoca points out herself, birthright citizens may become aware of the value of their external citizenship at the point where they risk to lose it. Why would this not also be the case if they are asked to confirm it in order not to lose it? If automatic loss is a workable first-best policy from Tanasoca’s perspective, what is the point of a lengthy presentation of a second-best policy that does not meet a basic criterion for second-best options – that they are more likely to be implementable?

What is the source of Tanasoca’s hostility towards dual citizenship in case of naturalisation? It is not the traditional objections that individuals cannot be loyal to two states, or that dual citizenship generates conflicts between legal orders and citizen duties. Tanasoca seems instead to be motivated by a sociologically deficient view of international migration as a one-way movement that results in permanent settlement in a host society. If this were the case, then a default loss of the citizenship of origin at the point of naturalisation would indeed make sense. However, migrants’ make choices about emigration and immigration, settlement and return migration that often change with changing circumstances. They are not isolated individuals but have families and households that are often split across countries over long periods. In most cases, they retain strong ties to a country of origin and have a fundamental interest in opportunities of mobility between that country and a country of long-term residence. Cheap airfares and internet-based communication make transnational family splitting as well as frequent mobility possible. All of this explains why migrants are interested in dual citizenship, which opens for them a free movement corridor between their countries of birth and residence. I believe these are also perfectly legitimate interests that liberal states ought to respect through tolerating dual citizenship. It is not clear that Tanasoca has considered them thoroughly.

I have least disagreement with Chapter 4 on multiple citizenship for investors. The difference between these and ordinary migrants is that the latter are interested in being mobile between states to which they have genuine links, whereas the former collect passports for the sake of tax evasion or just because it enhances their prestige (Harpaz 2019). Tanasoca’s comparison between the sale of honours in aristocratic polities and the sale of citizenship today is illuminating. It also highlights that investors buy passports not so much in order to enjoy additional mobility privileges, since the superrich can rather easily get visa to most countries, but as a symbol of their elevated status in a global social hierarchy (Džankić 2019). In other words, selling passports undermines citizenship as a ‘relational good’ the sharing of which signals an equal status of individuals within a particular polity. I find it just hard to understand how these objections to the sale of citizenship connect with Tanasoca’s rejection of dual citizenship in cases where individuals have just this kind of relation with more than one state.

Chapter 5 presents an analytically quite brilliant argument that is beside the point. Tanasoca shows that collective decisions by majority voting may violate basic requirements of rationality if voters do not share certain frames that allow for ordering policy choices on single dimensions, such as the left-right axis. From this insight she jumps to the conclusion that multiple citizens do not share the frames of reference that inform the political choices of the native population and that multiple citizenship undermines therefore democratic deliberation and decision-making. This is a non-sequitur. First, the predicament that Tanasoca describes exists inside contemporary liberal democracies independently of migration-induced diversity. Political scientists have analysed the emergence of a globalisation cleavage that introduces a second political axis between open and closed worldviews and cuts across the traditional left-right divide (Kriesi et al. 2006). This makes it harder to imagine democratic votes and decisions as the rational outcome of a collective deliberation among citizens. Second, this breakdown of shared frames has certainly a connection with migration, but rather through triggering contrasting responses to immigration and other globalisation phenomena among native citizens and their political representatives rather than through deeply entrenched cultural differences between natives and immigrants. Third, even if we grant that immigration from culturally different countries adds further to the plurality of political frames in immigration societies and their impact on democratic decisions, this effect depends entirely on whether immigrants are enfranchised as citizens and not at all on whether they hold a second citizenship in their country of origin. Tanasoca’s argument thus suggests rather that immigrants should not be naturalised without being screened for cultural and political assimilation – an implication that should worry any liberal theorist.

While it cannot be denied that deep differences of world views make the task of democratic deliberation more difficult, democracy is also invigorated by diversity and remains the only system of collective self-government that can claim legitimacy in societies whose populations are deeply divided by conflicts of interests, ideologies and identities. Banning multiple citizenship would have the effect of signaling that citizenship is not only a common status of equality that members of a polity share in spite of their differences, it would wrongly suggest that it is also an exclusive status that requires that newcomers leave behind their previous political and cultural identities.

Chapter 6 picks up the debate on the democratic boundary problem. Here Tanasoca adds to the familiar principles of including all affected interests or all subjected to government coercion Michael Frazer’s idea that including unaffected interests may improve democratic decisions where impartiality is a strong requirement (Frazer 2014). The setup is a comparison between these principles in order to find out whether any among them could justify an expansion of the demos that could be accomplished with the help of multiple citizenship (p. 114). The answer is, unsurprisingly, affirmative for all three principles. However, Tanasoca maintains, multiple citizenship is a second-best approximation to democratic inclusion imperatives, whereas unbundling rights from citizenship status and distributing them separately according to these principles is the best solution.

The problem that this account shares with many other contributions to the democratic boundary debate lies in assuming that all inclusion principles address the same problem of determining the composition of the demos and provide alternative solutions to it. However, a principle of including all whose interests are affected by a policy decision cannot possibly determine who is authorised to elect the legislators taking this decision. The same applies even more obviously to a principle of including unaffected interests, as Frazer points out very clearly. What we need instead is a principle that specifies legitimate interests (or stakes) in membership in a particular self-governing polity. These interests cannot without contradiction be derived from policy outputs, be it affected interests or the subjection of a particular population to the territorial jurisdiction of a government. I will not rehearse my own solution of this problem here (see Bauböck 2017), which Tanasoca misunderstands just as much as Frazer’s argument. I merely want to point out that unbundling rights from citizenship does not resolve the issue as it cannot answer to the question of who should be recognized as having a claim to membership in a demos that authorises democratic legislation which generates in turn a distribution of legal rights. Once we understand this to be the problem, the legitimacy of multiple citizenship depends on whether an individual has claims to membership in several independent and self-governing polities. I have suggested that international migrants typically have such claims and that granting these claims is compatible with the self-government of democratic states.

Chapter 7 deals with global inequality and taxation of income and suggests that dual citizens enjoy undeserved advantages not merely because they may be able to choose between alternative jurisdictions but also because those who are globally worse off are less likely to migrate and become dual citizens. The combination of both effects would entail that the globally wealthier people get easier access to multiple citizenship and can then choose to take up residence in richer states where better life conditions prevail and where they may be taxed less.

These claims are partly plausible but Tanasoca argues on grounds of sweeping generalisations without the necessary qualifications and without much empirical support. For example, she claims, without further evidence, that ‘states that are better integrated into the world economy (states whose citizens both invest elsewhere and benefit from foreign investment) are more prone to accept dual citizenship’ (p. 143). New research by Maarten Vink and others (2019) shows, however, that there is virtually no correlation between the likelihood that a country of origin tolerates dual citizenship among its emigrants and its GDP per capita. Tanasoca’s hypothesis is also implausible since poorer countries should be more interested in their emigrants’ remittances and thus more likely to want them to retain citizenship ties.

Of course, Tanasoca is right that, just as mobility of capital, mobility of wealthy persons is likely to afford them with additional advantages. But, as Tanasoca points out herself, ‘one does not have to be a dual citizen, merely a migrant, to take advantage of double taxation agreements […] and thus exacerbate global inequalities’ (p. 145). Whatever additional effects dual citizenship has for the wealthy is likely to be marginal compared to the basic effect of mobility of capital and global elites. So the argument points again towards a conclusion that liberals must be deeply uncomfortable with: Instead of complementing free movement of capital with wider opportunities for free movement of persons, the latter should be curtailed for the sake of not further increasing global inequality. Non-toleration of dual citizenship would contribute to reducing global mobility and thus might be endorsed by Tanasoca also for this reason. Yet going back to mid-20th century prohibitions of dual citizenship is likely to hurt the poor much more than the rich. While it is true that the globally poorest mostly lack the resources for international migration, it is also true that immigrants are on average poorer than the native populations of their destination countries. Moreover, dual citizenship is the only opportunity for worse-off migrants from worse-off countries to acquire mobility rights between their countries of origin and destination. Shutting down this channel through outlawing dual citizenship toleration by countries of origin is likely to affect many of the worse-off migrants much more than it is going to reduce opportunities for the super-rich.

Tanasoca’s policy proposal in this chapter is, however, a quite different one. She wants to introduce a special tax on multiple citizenship. Who is going to collect this tax? And who is going to compile the global registry of multiple citizens? In the absence of world government this suggestion is obviously not feasible. As a second-best Tanasoca proposes introducing a clause in existing double taxation agreements that dual citizens should always pay their income tax to the poorer of the two states rather than their state of residence, as is the current norm. This is another outlandish proposal that fails not merely on grounds of feasibility but also democratic principle. It ignores the democratic purpose of income taxation, which is to finance the public goods that governments provide in their territories and to make these governments accountable to citizens who pay taxes. Why should governments of rich states transfer tax authority to poorer countries instead of using part of their tax revenues for development assistance? How should they justify to their citizens that multiple citizens from poorer countries consume the public goods financed through taxes paid by their mono-national citizens and mono-national foreign residents without contributing to the production of these goods?

Tanasoca’s book is a lively and provocative intervention and it opens up a debate within normative theory that has so far been largely confined to international law and migration studies. It fails, however, to flesh out a coherent argument based on a consideration of all relevant facts and norms.